Posted On: June 22, 2008

Zoning Variance May Not Be Limited To The Term of Ownership of the Applicant


In upholding the decision of a zoning board denying an area variance, the Appellate Division in Fowlkes v Board of Zoning Appeals of the Town of North Hempstead noted that the variance could not have been limited in time to the term of ownership of the present applicant. Instead the Court noted: “the variances could not be limited to the term of her ownership of the premises because any condition imposed when granting a variance must be directly related to the property involved and to the underlying purpose of the zoning code, without consideration of the particular person owning or occupying it.”

Posted On: June 15, 2008

A Complete Record is the Key in Zoning Board Applications

This week the Appellate Division, Second Department reiterated the application of the doctrine of exhaustion of administrative remedies and the importance of a clear record in the proceedings of zoning boards. In Matter of Kaufman v Incorporated Village of Kings Point, the building inspector had determined that the lot in question had the required lot area but lacked sufficient lot width and lot frontage. The property owners applied to the zoning board for the necessary variances, which was opposed by neighbors. Based largely on a statement by the Village attorney that similar applications had been granted in the past, the zoning board granted the application.

The neighbors brought an Article 78 proceeding challenging the variances and for the first time claimed that the lot in question did not have the required lot area. In modifying the decision of the Supreme Court, the Appellate Division held this issue should not have been considered as it was neither a question of law nor “apparent from the face of the record.” The Court noted that in an Article 78 proceeding the court’s review is “limited to the arguments and record adduced before the agency” and that a litigant is require to exhaust all possible relief through administrative review before resorting to the courts.

However the Court still remitted the case to the zoning board noting that it was not clear from the record that the zoning board had considered the five factor balancing test required by Village Law section 7-712 (b) in granting the variances. Further, on the contention that the zoning board was compelled to follow its precedent in granting similar variances, the Court found: “other than the conclusory statement from the Village Attorney, it was never established that applications for area variances involving similar factual circumstances had been granted in the past….”

The case acts as a reminder of two important and related points: (1) the zoning board has to make a clear record of the reasons for its decision and (2) those appearing before a zoning board have to make a clear record of the relevant issues. Absent a well developed record the court will either reject the arguments outright or remit the matter for further proceedings.

Posted On: June 7, 2008

Allowing Hot Mix Asphalt Plant as Special Use is Not Spot Zoning

A zoning amendment which permitted hot mix asphalt facilities as a special use in all industrial districts in the Town of Babylon was held not to be spot zoning by the Appellate Division this week. In the case, Matter of Little Joseph Realty, Inc. v Town Board of the Town of Babylon, the court found the amendment was not enacted to benefit a single owner for a specific purpose only.

The Court noted that spot zoning is “the process of singling out a small parcel of land, for a use classification totally different from that of the surrounding area, for the benefit of the owner of such property and to the detriment of other owners.” In affirming the decision of the Supreme Court, the Appellate Division found that the lower court had correctly determined that “the zoning amendments did not allow for a use that was different from that allowed in the surrounding area and was in conformity with the comprehensive plan calculated to serve the general welfare of the community.”